Rehabilitation

There is definitely hope after insolvency! You can apply for rehabilitation to clear your name and restore your reputation.

Without rehabilitation, your sequestration will be held against your name for 10 years with the credit bureau. During this time you will not be able to incur any debt. All debt before sequestration is no longer an issue as it forms part of the insolvent estate and is therefore being dealt with.

1. Please note you need to maintain a good relationship with your curator to ensure a successful rehabilitation. The curator can refuse to give permission for rehabilitation if you fail to meet the requirements for example if debt is incurred after sequestration. In one instance the insolvent refused to vacate a property after it was sold and threatened the curator at his offices. In such instances the curator will refuse permission for rehabilitation.

2. Curators may set specific requirements to assist the insolvent in managing their finances during the sequestration period. Some curators require monthly income and expenditure statements, others may require your attendance at a meeting. You will be expected to adhere to all the curator’s requirements to ensure a successful rehabilitation application.

3. Before the application for rehabilitation can be submitted to the High Court the following needs to be done:

* The Curator needs to draft a Liquidation and Distribution Account (L & D) that shows how the insolvent estate was administered. * This L & D Account is then submitted to the Master of the High Court for approval. * The L & D account is only complete after the Master of the High Court has given his approval. This may take weeks or months.

4. The Rules of Court states that you may apply foryour rehabilitation: Four years after the date of sequestration and with the L & D account confirmed by the Master of the High Court. For example if you were sequestrated on 01 February 2005 you may only apply for rehabilitation on or after 01 February 2009. We recommend this process to ensure a successful application for rehabilitation as the Master will always present a positive report if these conditions are met.

OR

One year after the L & D is confirmed by the Master of the High Court. (This doesn’t happen often).

5. If a property was declared a fixed asset during sequestration the rehabilitation process will be as follows: If a property was sold for R500 000.00 and the outstanding bond at the bank was R700 000.00, there is a shortfall of R200 000.00. In this instance no creditor can claim against the insolvent estate. The only institution that is guaranteed to have accounts paid is the city council and a body corporate (if you lived in a complex). To have the L & D account balanced there is a contribution payable. In above mentioned instance the contribution will be between R8000 and R25000. In the more than 12 years that I have been doing insolvencies, R25000 was the highest contribution payable (an insolvent’s house was sold for R100 and his contribution was R25000.00). The contribution has to be paid to the curator before the said curator will grant permission for rehabilitation.

6. To apply for rehabilitation the following documents are required: - the sequestration order; - Certificate of appointment of curator; - The Article 81 report; - The first and final liquidation and distribution account (L & D); - Enforced letter in respect of the first and final liquidation and distribution account; - Date when the first and final liquidation account was enforced by the Master of the High Court.

In respect of the above we may proceed with the rehabilitation process: - If there were claims lodged against the insolvent estate and there was a shortfall, then one year should have elapsed after the L & D was enforced by the Master. - If you have not applied for rehabilitation for at least three years. - If you have been found guilty and a judgement has been placed against your name, at least five years should lapse, before application for rehabilitation can be lodged. - If no claims were lodged against the insolvent estate and it is a first time application for rehabilitation and there are no judgements against you, an application for rehabilitation may be made immediately after the L & D has been enforced by the Master. (The Master may not be happy to grant such an application. Previously a client withdrew all funds from his credit card, applied for a voluntary surrender of his estate, paid the curator with the money and then applied for rehabilitation.)

The process: · When we receive the relevant documents a notice is published in the Government Gazette and an affidavit is drafted for the clients signature before a Commissioner of Oaths. · Next a report is requested from the curator as well as from the Master of the High Court, which gives permission for a rehabilitation application to be lodged. The report from the Master can take anything from two weeks to three months to obtain and is necessary before we can proceed with the application.

The Hearing: On the court date an Advocate will present the application on your behalf. There is no need for you to attend the court hearing in person. We will notify you of the outcome. A court order will be granted within 10 to 15 days.

The process to clear your name: As soon as we receive the court order, we send the order to ITC (Trans-Union), Compuscan, Experian, XDS. We also send a letter with the rehabilitation order, sequestration order, certified copy of clients Identity document and the statement of debtor’s affairs (list of creditors).

ITC takes approximately 21 days to update their records. We have had instances where we phoned ITC within the 21 day period, where they stated that they have not received any documents, but after the 21 days have lapsed, it was clearly updated on the system. The conclusion is that should the documentation be received by ITC there is no acknowledgement thereof on their system or that they are busy processing the information, but after the 21 days have lapsed, the information has been updated.

We have experienced that ITC’s rules and requirements are sometimes adapted, for example: - Initially they only required the court order for the rehabilitation to remove all records. - Later we had to call to receive a reference nr before faxing the rehabilitation order. - Then it was stated we were not allowed to call as we were a “third party” and instead they waited for the High Court to forward the order before they could take any action. - At another stage we sent the court order through and ITC removed the entire credit record leaving no records whatsoever of previous debt or the sequestration. - Currently there are six documents that we need to send through and we have to wait 21 days. - Some of our clients have reported that within the 21 days, ITC confirmed with a text message that their credit recordhad been cleared. However another client received a similar text message but still had a record remaining on their credit record. - Some institutions say that their records may not be removed from ITC until two years after it was placed. In such instances there may be an additional fee payable to have it removed by an independent agency.

We constantly struggle with ITC as their policy is not consistent, and they should comply with the new Credit Act regulations. Please be assured that we will do all in our power to have our client’s name restored.

THERE IS HOPE!!!

We would like to encourage you that there is hope after Rehabilitation!! We applied for rehabilitation on behalf of a client in September 2009. Subsequently the client applied for a loan to purchase a property. Three banks declined the application but a fourth bank granted the loan. Their motivation was that they could see that the client was able to handle her affairs responsibly. The bank said that she was completely rehabilitated and able to make a positive contribution to the economy.